Following Brexit, the European commission has published a note regarding the recognition of professional qualifications obtained in the United Kingdom of Great Britain and Northern Ireland so that they can be considered valid in the European Union.
The purpose of the note published by the European commission is twofold: on the one hand, it seeks to clarify the application of EU law to requests, made by EU nationals, for recognition of qualifications acquired in the UK; on the other hand, it seeks to clarify the rules applicable to the recognition, in the EU, of qualifications acquired in the UK, by UK nationals.
Objectives and scope
At a European level, the recognition of professional qualifications is already regulated by Directive 2005/36/CE, which applies to all nationals of a member state who wish to pursue, as subordinate workers or self-employed persons, a regulated profession in a member state other than the one in which they acquired their professional qualification. Specifically, under Article 4(1) of Directive 2005/36/EC:
“the recognition of professional qualifications by the host Member State shall allow beneficiaries to have access, in that Member State, to the same profession for which they are qualified in their home Member State and to practice, in the host Member State, under the same conditions as the nationals of that Member State.”
Depending on the profession, different recognition regimes may apply. For the profession of lawyers and auditors, for example, specific rules may apply.
Moreover, articles 5 to 9 of Directive 2005/36/EC, provide a mechanism according to which professionals established in one member state can move and carry out regulated professional activities in another member state on a temporary and/or occasional basis.
Finally, Directive 2005/36/EC also deals with the case of EU nationals with qualifications acquired in third countries. However, it does not deal with the recognition of qualifications of third-country nationals.
Therefore, the commission note aims to provide clarification on the recognition of UK qualifications, taking into account the following two situations:
- UK qualifications held by EU nationals (covered by Directive 2005/36/EC) versus UK qualifications held by UK nationals (outside the scope of Directive 2005/36/EC);
- Qualification recognition in case of temporary and/or occasional provision of services.
UK qualifications held by EU nationals
The situation varies depending on whether the EU citizen obtained the qualifications before or after the transition period under the withdrawal agreement.
Qualifications obtained before December 31, 2020
In case the qualification was obtained by the end of the transition period, Directive 2005/36/EC applies, meaning that the qualification is considered equal to one issued by a member state of the EU.
Qualifications obtained after December 31, 2020
Qualifications obtained after the end of the transition period, on the other hand, are equated with third-country qualifications under Directive 2005/36/EC. Consequently, the holder will have to apply for and obtain recognition in the host member state in accordance with the national rules and procedure of that member state.
If the professional wishes to have his or her qualifications recognized in another member state, the recognition in the first host state will have to be followed by three years of professional experience in the first host member state, in accordance with Article 3(3) of Directive 2005/36/EC. Otherwise, the holder will again have to apply for recognition according to the national rules and procedures of the new host member state.
The note also points out how the provisions of Article 49 of the Treaty on the Functioning of the EU (TFEU), and the corresponding case law of the Court of Justice of the EU, regarding freedom of establishment in the Union, remain applicable to EU nationals who wish to have their third-country qualifications recognized.
UK qualifications held by UK nationals
The situation varies depending on whether or not the EU citizen falls within the personal scope of the withdrawal agreement.
Citizens falling within the personal scope of the withdrawal agreement
Those UK citizens who lived and had registered their residence in a member state before December 31, 2020 and continue to reside thereafter fall within the scope of the withdrawal agreement. Are included also those UK citizens who had exercised their right as frontier workers before that date and continue to do so thereafter.
Finally, family members of those UK nationals who meet the conditions pf Article 10(1)(e) and (f) of the withdrawal agreement are included too.
For these citizens, three possible scenarios can occur:
- The qualification was acquired and recognized before December 31, 2020: the recognition by the host member state retains its effect, i.e. the holder can practice the profession in the state where he or she has retained the right of residence. However, the recognition is valid only in that host member state and does not extend to other member states;
- The qualification was acquired before December 31, 2020, but the application for recognition was still pending on that date: article 28 of the withdrawal agreement applies to such qualifications, so the member state and the UK authorities must cooperate to facilitate the qualification’s recognition;
- The application for recognition has been submitted after December 31, 220, regardless of whether the qualification was acquired before or after that date: such qualifications are assimilated to third-country qualifications held by third-country nationals. In this case, recognition follows the national tules and procedures of the host member state.
Citizens outside the personal scope of the withdrawal agreement
In the case of citizens outside the personal scope of the withdrawal agreement, the UK qualifications they hold are assimilated to third-country qualifications held by third-country nationals. In this case, recognition follows the national rules and procedures of the host member state.
Temporary or occasional provision of services
In case of temporary or occasional provision of services, two situations may arise:
- UK qualifications held by EU nationals: EU nationals established in the UK cannot use the provisions of Directive 2005/36/EC to provide regulated professional activities in the EU on a temporary and occasional basis, as this right is reserved for EU nationals established in a Member State (Article 5(1) of Directive 2005/36/EC). In contrast, EU citizens holding UK qualifications who have obtained recognition of those qualifications by establishing themselves in a Member State are governed by Directive 2005/36/EC when they intend to provide services on a temporary basis in another Member State, in accordance with Article 2 of Directive 2005/36/EC.
- UK qualifications held by UK nationals: UK nationals established in the EU cannot, under the withdrawal agreement, provide regulated professional services on a temporary basis outside the host member state in which they reside. Similarly, UK nationals who do not reside in a member state cannot provide regulated professional activities on a temporary and occasional basis in the EU. Therefore, in such circumstances, applications for recognition of professional qualifications for the provision of services will follow national rules as well as the rules on cross-border trade in services.